Legal provisions of COM(2022)177 - Protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”)

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dossier COM(2022)177 - Protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic ...
document COM(2022)177 EN
date April 11, 2024

Contents

CHAPTER - I


General provisions

Article 1 - Subject matter

This Directive provides safeguards against manifestly unfounded or abusive court proceedings in civil matters with cross-border implications brought against natural and legal persons, in particular journalists and human rights defenders, on account of their engagement in public participation.

Article 2 - Scope

This Directive shall apply to matters of a civil or commercial nature with cross-border implications, whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).

Article 3 - Definitions

For the purposes of this Directive, the following definitions shall apply:

1. ‘public participation’ means any statement or activity by a natural or legal person expressed or carried out in the exercise of the right to freedom of expression and information on a matter of public interest, and preparatory, supporting or assisting action directly linked thereto. This includes complaints, petitions, administrative or judicial claims and participation in public hearings;

2. ‘matter of public interest’ means any matter which affects the public to such an extent that the public may legitimately take an interest in it, in areas such as:

(a)public health, safety, the environment, climate or enjoyment of fundamental rights;

(b)activities of a person or entity in the public eye or of public interest;

(c)matters under public consideration or review by a legislative, executive, or judicial body, or any other public official proceedings;

(d)allegations of corruption, fraud or criminality;

(e)activities aimed to fight disinformation;

3. ‘abusive court proceedings against public participation’ mean court proceedings brought in relation to public participation that are fully or partially unfounded and have as their main purpose to prevent, restrict or penalize public participation. Indications of such a purpose can be:

(a)the disproportionate, excessive or unreasonable nature of the claim or part thereof;

(b)the existence of multiple proceedings initiated by the claimant or associated parties in relation to similar matters;

(c)intimidation, harassment or threats on the part of the claimant or his or her representatives.

Article 4 - Matters with cross-border implications

1. For the purposes of this Directive, a matter is considered to have cross-border implications unless both parties are domiciled in the same Member State as the court seised. 

2. Where both parties to the proceedings are domiciled in the same Member State as the court seised, the matter shall also be considered to have cross-border implications if: 

(a)the act of public participation concerning a matter of public interest against which court proceedings are initiated is relevant to more than one Member State, or

(b)the claimant or associated entities have initiated concurrent or previous court proceedings against the same or associated defendants in another Member State.

CHAPTER I - I


Common rules on procedural safeguards

Article 5 - Applications for procedural safeguards

1. Member States shall ensure that when court proceedings are brought against natural or legal persons on account of their engagement in public participation, those persons can apply for:

(a)security in accordance with Article 8; 

(b)early dismissal of manifestly unfounded court proceedings in accordance with Chapter III;

(c)remedies against abusive court proceedings in accordance with Chapter IV.

2. Such applications shall include:

(a)a description of the elements on which they are based;

(b)a description of the supporting evidence.

3. Member States may provide that measures on procedural safeguards in accordance with Chapters III and IV can be taken by the court or tribunal seised of the matter ex officio.

Article 6 - Subsequent amendment to claim or pleadings

Member States shall ensure that any subsequent amendments to the claims or the pleadings made by the claimant in the main proceedings, including the discontinuation of proceedings, do not affect the possibility for the court or tribunal seised of the matter to consider the court proceedings abusive and to impose remedies in accordance with Chapter IV.

Article 7 - Third party intervention

Member States shall take the necessary measures to ensure that a court or tribunal seised of court proceedings against public participation may accept that non-governmental organisations safeguarding or promoting the rights of persons engaging in public participation may take part in those proceedings, either in support of the defendant or to provide information.

Article 8 - Security

Member states shall ensure that in court proceedings against public participation, the court or tribunal seised has the power to require the claimant to provide security for procedural costs, or for procedural costs and damages, if it considers such security appropriate in view of presence of elements indicating abusive court proceedings.

CHAPTER II - I


Early dismissal of manifestly unfounded court proceedings

Article 9 - Early dismissal

1. Member States shall empower courts and tribunals to adopt an early decision to dismiss, in full or in part, court proceedings against public participation as manifestly unfounded.

2. Member States may establish time limits for the exercise of the right to file an application for early dismissal. The time limits shall be proportionate and not render such exercise impossible or excessively difficult.

Article 10 - Stay of the main proceedings

Member States shall ensure that if the defendant applies for early dismissal, the main proceedings are stayed until a final decision on that application is taken.

Article 11 - Accelerated procedure

Member States shall ensure that an application for early dismissal is treated in an accelerated procedure, taking into account the circumstances of the case and the right to an effective remedy and the right to a fair trial.

Article 12 - Burden of proof

Member States shall ensure that where a defendant has applied for early dismissal, it shall be for the claimant to prove that the claim is not manifestly unfounded.

Article 13 - Appeal

Member States shall ensure that a decision refusing or granting early dismissal pursuant to Article 9 is subject to an appeal.

CHAPTER I - V


Remedies against abusive court proceedings

Article 14 - Award of costs

Member States shall take the necessary measures to ensure that a claimant who has brought abusive court proceedings against public participation can be ordered to bear all the costs of the proceedings, including the full costs of legal representation incurred by the defendant, unless such costs are excessive.

Article 15 - Compensation of damages

Member States shall take the necessary measures to ensure that a natural or legal person who has suffered harm as a result of an abusive court proceedings against public participation is able to claim and to obtain full compensation for that harm.

Article 16 - Penalties

Member States shall provide that courts or tribunals seised of abusive court proceedings against public participation have the possibility to impose effective, proportionate and dissuasive penalties on the party who brought those proceedings.

CHAPTER - V


Protection against third-country judgments

Article 17 - Grounds for refusal of recognition and enforcement of a third-country judgment

Member States shall ensure that the recognition and enforcement of a third-country judgment in court proceedings on account of public participation by natural or legal person domiciled in a Member State is refused as manifestly contrary to public policy (ordre public) if those proceedings would have been considered manifestly unfounded or abusive if they had been brought before the courts or tribunals of the Member State where recognition or enforcement is sought and those courts or tribunals would have applied their own law.

Article 18 - Jurisdiction for actions against third-country judgments

Member States shall ensure that, where abusive court proceedings on account of engagement in public participation have been brought in a court or tribunal of a third country against a natural or legal person domiciled in a Member State, that person may seek, in the courts or tribunals of the place where he is domiciled, compensation of the damages and the costs incurred in connection with the proceedings before the court or tribunal of the third country, irrespective of the domicile of the claimant in the proceedings in the third country.

CHAPTER V - I


Final provisions

Article 19 - Relations with the 2007 Lugano Convention

This Directive shall not affect the application of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed in Lugano on 30 October 2007.

Article 20 - Review

Member States shall provide the Commission with all relevant information regarding the application of this Directive by [5 years from the date of transposition]. On the basis of the information provided, the Commission shall by [6 years from the date of transposition] at the latest, submit to the European Parliament and the Council a report on the application of this Directive. The report shall provide an assessment of the evolution of abusive court proceedings against public participation and the impact of this Directive in the Member States. If necessary, the report shall be accompanied by proposals to amend this Directive.

Article 21 - Transposition into national law

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [2 years from the date of entry into force of this Directive] at the latest. They shall forthwith communicate to the Commission the text of those provisions.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 22 - Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 23 - Addressees

This Directive is addressed to the Member States.